EXHIBIT 2.14
EXHIBIT I to Separation Agreement
MEMBRANE MANUFACTURE AND SUPPLY AGREEMENT
This Membrane Manufacture and Supply Agreement (this "Agreement") is
entered into as of ________________, 2001, between Millipore Corporation
("Millipore"), a Massachusetts corporation with its principal place of business
at 00 Xxxxx Xxxx, Xxxxxxx, XX 00000, and Millipore MicroElectronics, Inc.
("MMI"), a Delaware corporation with its principal place of business at Xxxxxxxx
Xxxx, Xxxxxxx, XX 00000.
RECITALS
1. Millipore currently owns all of the issued and outstanding common
stock of MMI.
2. Millipore and MMI have entered into a Master Separation and
Distribution Agreement as of February ____, 2001 (the "Master Agreement") under
which, among other things, the business of Millipore's Microelectronics Division
is to be taken over by, and the assets and liabilities associated therewith are
to be transferred to and assumed by, MMI at the Separation Date (as defined in
the Master Agreement).
3. After the Separation Date, in order to enable Millipore and MMI to
carry on their respective businesses as separate companies, Millipore and MMI
desire to provide for a manufacturing and supply arrangement relating to certain
membranes that are used by and incorporated into products of both Millipore and
MMI, so as to appropriately ensure both Millipore and MMI a continuing supply of
such membranes.
4. The Master Agreement provides for this Agreement to be entered into as
of the Separation Date.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
1. DEFINITIONS
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The following terms shall have the meanings assigned to them below whenever they
are used in this Agreement. Capitalized terms used in this Agreement without
definition and which are defined in the Master Agreement shall have the meanings
assigned to them in the Master Agreement. Except where the context otherwise
requires, words imparting the singular shall include the plural and vice versa,
words denoting any gender shall include all genders and words denoting persons
shall include bodies corporate and vice versa.
"FLAT SHEET UPE MEMBRANES" shall mean (i) rollstock UPE Membranes typically
less than 300 microns in sheet thickness including both phobic and philic
Membranes, and (ii) polypropylene sterilizing membrane (Solvex), each as
produced by Millipore at the Premises immediately prior to the Separation Date,
or as modified as provided in this Agreement.
"HOLLOW FIBER UPE MEMBRANES" shall mean phobic, tubular UPE Membranes
having an outer diameter typically in the range of 400 to 1500 microns and an
inner diameter typically in the range of 200 to 500 microns.
"JSA" shall mean a Joint Services Agreement that may be entered into
between the parties and amended from time to time during the Term of this
Agreement, which would provide specific mechanisms for carrying out forecasting,
maintenance of inventory levels, quality parameters, on-time delivery
measurement, and the like.
"LEASE" shall mean the lease of the Premises as set forth in Section 2
hereof.
"MEMBRANES" shall mean UPE Membranes and Other Membranes as well as any
other membranes or materials that the parties may hereafter agree to add to this
definition of Membranes.
"MILLIPORE EQUIPMENT" shall have the meaning set forth in Section 2(e)(ii)
hereof.
"MMI EQUIPMENT" shall have the meaning set forth in Section 2(e)(i) hereof.
"MMI PERMITTED PERSONS" shall mean those employees or consultants of MMI
that are involved regularly or from time to time in the manufacture of UPE
Membranes and reasonably need access to the Premises for such purposes.
"OTHER FLAT SHEET UPE MEMBRANES" shall mean Flat Sheet UPE Membranes other
than Treated Flat Sheet UPE Membranes. Other Flat Sheet UPE Membranes include,
as of the date hereof, those Membranes listed under the heading "Other Flat
Sheet UPE Membranes" in Exhibit A hereto.
"OTHER MEMBRANES" shall mean those membranes listed under the heading
"Other Membranes" in Exhibit A hereto, each as produced by Millipore immediately
prior to the Separation Date, or as modified as provided in this Agreement.
"OTHER MEMBRANE PRODUCTS" shall mean devices or other products which
include one or more Other Membranes as a material or component.
"OTHER UPE MEMBRANES" shall mean all UPE Membranes other than Treated Flat
Sheet UPE Membranes.
"OTHER UPE PRODUCTS" shall mean devices or other products which include
Other UPE Membranes as a material or component.
"PREMISES" shall have the meaning set forth in Section 2(a) hereof.
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"RELEASES" shall mean any purchase orders or other documents of purchase
that Millipore may place with MMI for UPE Membranes, or that MMI may place with
Millipore for Other Membranes.
"SUPPLIED PARTY" shall mean a party to this Agreement that orders certain
Membranes pursuant to this Agreement and to whom such Membranes are sold.
"SUPPLYING PARTY" shall mean a party to this Agreement that manufactures
certain Membranes ordered by the other party pursuant to this Agreement and that
sells such Membranes to the other party.
"TERM" or "TERM OF THIS AGREEMENT" shall mean the effective period of this
Agreement as set forth in Section 4 hereof.
"TREATED MMI MEMBRANES" shall mean Treated Flat Sheet UPE Membranes and
Treated Other MMI Membranes.
"TREATED MMI PRODUCTS" shall mean devices or other products which include
Treated MMI Membranes as a material or component.
"TREATED OTHER MMI MEMBRANES" shall mean those MMI membranes that are
chemically treated using Millipore's VMF4 Line or using Millipore's patented
VMF4 technology, including those membranes listed under the heading "Treated
Other MMI Membranes" in Exhibit A hereto, and such other membranes as may be
added to such list and to this definition as provided in Section 2(o) hereof.
"TREATED FLAT SHEET UPE MEMBRANES" shall mean Flat Sheet UPE Membranes that
are chemically treated using Millipore's VMF4 Line or using Millipore's patented
VMF4 technology, including, as of the date hereof, those Membranes listed under
the heading "Treated Flat Sheet UPE Membranes" in Exhibit A hereto.
"UPE MEMBRANES" shall mean microporous membranes produced from an ultrahigh
molecular weight polyethylene material by a melt cast process, as produced by
Millipore at the Premises immediately prior to the Separation Date, or as
modified as provided in this Agreement, including Hollow Fiber UPE Membranes,
Flat Sheet UPE Membranes, Other UPE Membranes, Treated Flat Sheet UPE Membranes
and Other Flat Sheet UPE Membranes.
"UPE PRODUCTS" shall mean devices or other products which include UPE
Membranes as a material or component.
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2. SPACE AND TRANSITION SERVICES FOR UPE MEMBRANE AND TREATED OTHER MMI MEMBRANE
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MANUFACTURE
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In order to enable MMI, during a limited transition period following the
Separation, to manufacture UPE Membranes and Treated Other MMI Membranes in the
same production areas and with the same processes as such UPE Membranes and
Treated Other MMI Membranes were manufactured prior to the Separation Date (both
(i) for its own use and sale and for its sale of UPE Products, and (ii) for
supply of Flat Sheet UPE Membranes to Millipore as provided in this Agreement),
Millipore and MMI agree to the following arrangements regarding MMI's use of
space and manufacturing equipment and regarding Millipore's services to MMI in
facilitating MMI's manufacture of UPE Membranes and Treated Other MMI Membranes.
(a) Millipore hereby leases to MMI, and MMI hereby leases from Millipore,
the areas within Buildings "C", "D" and "F" of Millipore's facility at
00 Xxxxx Xxxx, Xxxxxxx, XX, as more specifically described and shown
in Exhibit B hereto (the "Premises") for purposes of manufacture of
UPE Membranes and Treated Other MMI Membranes and warehousing of raw
materials and components used in such manufacture.
(b) The Lease shall commence as of the Separation Date and continue
through the end of the Term, provided however that MMI shall have the
right to terminate such Lease prior to the end of the Term upon 12
months prior written notice to Millipore.
(c) MMI shall pay to Millipore rent for the Premises initially in the
amount set forth in Exhibit C hereto. For each year of the Lease
beginning on the first anniversary of the Separation Date, rent shall
be increased by 5% over the prior year's rent. The initial rent
payment shall be made within 15 days following the Separation Date on
a pro-rated basis for the period beginning with the Separation Date
and ending on the last day of the calendar quarter during which such
initial payment is made. Each subsequent payment shall be made on or
before the first day of each subsequent calendar quarter during the
period of the Lease.
(d) At all times during the period of the Lease, MMI Permitted Persons
shall have access to the Premises for the purposes specified in clause
(a) of this Section 2, including reasonable ingress and egress through
other parts of Millipore's facility at 00 Xxxxx Xxxx. Without limiting
the generality of the foregoing, Millipore shall provide security
badges to such MMI Permitted Persons enabling their entry to the
Premises. MMI agrees to provide an initial list of such MMI Permitted
Persons to Millipore's facilities personnel (as shall be identified to
MMI by Millipore) promptly after the execution of this Agreement, and
to promptly update such list from time to time as necessary with any
additions or deletions. In addition, MMI Permitted Persons shall be
(i)
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provided, to the same extent provided to Millipore employees, with
access to the use of restrooms, the "Building E" cafeteria and other
common areas, and to conference rooms as reasonably necessary for
meetings relating to UPE Membranes manufacture, and (ii) permitted to
use mailroom services, telephone and voicemail systems, information
services, fax, copy machines, cafeteria/refreshment services, and the
like, at prices/rates consistent with those charged to internal
Millipore users of such services and supplies. Without limiting the
generality of the parties' respective obligations of confidentiality
and non-use as described in Article VI of the Master Agreement, MMI
hereby agrees that any information of Millipore that the MMI Permitted
Persons gain access to as a result of their presence in Millipore's
facility shall be subject to strict obligations of confidentiality and
non-use as provided in, and subject to the limitations and other
provisions of, such Article VI.
(e) For purposes of clarification, the parties acknowledge that:
(i) the following equipment currently used in the manufacture of UPE
Membranes and/or Treated Other MMI Membranes (collectively, the
"MMI Equipment") is owned, as of and following the Separation
Date, by MMI:
- Slurry Mixing Vessel
- Extrusion Line
- NZE (2 units)
- Testing: Flow, BP, Porisimetry, Dimensions (for phobic
Flat Sheet UPE Membranes and for Hollow Fiber UPE
Membranes)
- Monomer Chemical Mixing Vessel (for philic Flat Sheet
UPE Membranes)
- Batch Extractor (2 units) (for Hollow Fiber UPE
Membranes)
- Hollow Fiber Annealing Line
and
(ii) the following equipment currently used in the manufacture of UPE
Membranes and/or Treated Other MMI Membranes (collectively, the
"Millipore Equipment") is owned, as of and following the
Separation Date, by Millipore:
- Slurry Mix Stations 1-3 Control Modules
- Film 1 Annealing Line
- VMF4 Line (for hydrophilization/chemical modification)
- Testing: Flow, Wet Time, Stability (for philic Flat
Sheet UPE Membranes).
- Monomer Chemical Mixing Stations 4 - 6
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(f) At all times during the period of the Lease, Millipore shall provide
MMI with access to and use of the Millipore Equipment, each as
necessary for use in the manufacture of UPE Membranes or Treated Other
MMI Membranes. All such access to and use of such Millipore Equipment
shall be scheduled in advance, in accordance with mechanisms for
scheduling and for prioritizing time between MMI and Millipore needs
as shall be provided in a JSA or otherwise separately agreed by the
parties on or before the Separation Date. MMI shall pay Millipore
machine hour charges as set forth in Exhibit C for use of the
Millipore Equipment. Millipore shall invoice MMI for such amounts on a
quarterly basis.
(g) At all times during the period of the Lease, Millipore will supervise
and provide operational assistance to MMI in its use of the Millipore
Equipment, as may be requested by MMI or as may be determined
advisable by Millipore in its sole judgment in order to protect
against damage to such Millipore Equipment or injury to its operators
in accordance with standards and procedures in effect prior to the
Separation Date. Notwithstanding the foregoing, MMI is responsible for
using the Millipore Equipment in substantial compliance with operating
procedures in effect prior to the Separation Date and in a safe
manner, and shall assume all responsibility and liability for any
personal injury or damage to the Millipore Equipment or other property
damage resulting from MMI's use of such Millipore Equipment. Millipore
will also provide a reasonable level of general technical support for
assistance in resolving technical problems in UPE Membrane
manufacture. All Millipore supervisory, operational assistance, and
technical support time shall be charged to MMI at the rates per
person- hour as set forth in Exhibit C.
(h) At all times during the period of the Lease,
(i) Subject to the provisions of clause (g) above, Millipore shall be
responsible for maintaining the Millipore Equipment in its
current operational capability, unless otherwise agreed, and
(ii) MMI shall be responsible for maintaining the MMI Equipment in its
current operational capability and condition, unless otherwise
agreed.
(i) Upon the request of either party, the parties agree to negotiate, in
good faith and consistent with the Millipore LRP model for capacity
and space expansion/renovation, one or more modifications of the
Premises or the Lease terms as may be necessary or appropriate to meet
increased demand of either the Supplying Party or the Supplied Party
for one or more Membranes supplied hereunder, or for other good
reason, provided that Millipore shall have no obligation hereunder to
incur any expense in order to increase UPE Membrane manufacturing
capacity.
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(j) Except as may be otherwise agreed, during the period of the Lease, MMI
shall be fully responsible for regulatory, health, safety and
environmental compliance, as well as hazardous and solid waste
disposal, spill response and the like, generated by MMI's use of the
Premises and MMI's manufacture of UPE Membranes and Treated Other MMI
Membranes. MMI shall also be responsible for completing the conversion
from Genesolv to Vertrel as the UPE Membranes extraction solvent ,
consistent with the conversion plan in place as of the Separation
Date, and for disposal of any remaining Genesolv. Notwithstanding the
foregoing, at all times during the period of the Lease, Millipore
reserves the right to enter the Premises as it determines necessary or
desirable for purposes of health, safety and environmental compliance
or other reasonable purposes that relate to or impact any areas of its
00 Xxxxx Xxxx facility other than the Premises, provided that such
access does not unreasonably interfere with MMI's use of the Premises.
(k) Upon the termination of the Lease, Millipore requires the full rights
and capabilities to manufacture (or have manufactured) UPE Membranes
for its and its Affiliated Companies' use and sale, and for its and
its Affiliated Companies' use in manufacturing (or having
manufactured) UPE Products for sale, in the Millipore Core Business.
Accordingly, MMI has entered into the Master Patent Grantback License
Agreement in favor of Millipore.
(ii) In addition, to facilitate Millipore's manufacture of UPE
Membranes following the termination of the Lease:
(A) MMI acknowledges that it plans, consistent with Millipore's
pre-Separation Date LRP, to increase its UPE Membrane
manufacturing capacity on or prior to the termination of the
Lease, and in connection therewith to acquire new equipment
in replacement of the existing Extrusion Line and one NZE.
If such plan is, in fact, implemented (or if MMI shall
otherwise in its own discretion deem it appropriate), MMI
agrees to grant Millipore an option to purchase prior to or
at the termination of the Lease, and leave in their then
current locations, the Extrusion Line and one NZE system
used in manufacture of UPE Membranes, at their then current
book values and at such other reasonable terms as the
parties may agree at such time. MMI agrees to notify
Millipore, at the time of its notice of termination of the
Lease, as provided in Section 2(b) above, as to whether it
is granting Millipore such option;
and
(B) MMI agrees to provide Millipore with the know-how and a
reasonable amount of transition assistance necessary for
Millipore
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to be able to continue the UPE Membrane manufacturing
process immediately upon the termination of the Lease, so as
to be able to make UPE Membrane in the same process and of
the same quality as made and supplied under this Agreement.
All MMI transition assistance time shall be charged to
Millipore at the rates per person-hour as set forth in
Exhibit C.
(l) Upon the termination of the Lease, MMI requires the full rights and
capabilities to manufacture (or have manufactured) UPE Membranes and
Treated Other MMI Membranes. Accordingly, Millipore has entered into the
Master Patent License Agreement in favor of MMI.
and
(i) In addition, to facilitate MMI's manufacture of UPE Membranes and
Treated MMI Membranes at a different location following the
termination of the Lease,
(A) MMI shall remove and transport, at its own expense, the MMI
Equipment (subject to Millipore's option to purchase certain
items of such MMI Equipment as set forth in clause (k)(ii)(A)
above) from the Premises to a location of its choice, on or
before the termination of the Lease. MMI shall use its best
efforts to avoid or minimize damage to Millipore's facility from
such removal, and shall promptly reimburse Millipore for its
actual costs of repairing such facility as a result of any such
damage;
and
(B) Millipore shall provide MMI with know-how (including copies of
all pertinent documentation) and a reasonable amount of
transition assistance relating to the design, specifications,
functionality, operation and maintenance of the Millipore
Equipment, such that MMI can make or have made, and operate and
maintain, equipment substantially equivalent or comparable to the
Millipore Equipment, or successfully outsource the functions
performed by the Millipore Equipment in the manufacture of UPE
Membranes and Treated Other MMI Membranes. All Millipore
transition assistance shall be charged to MMI at the rates per
person- hour as set forth in Exhibit C.
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(m) In the event that that any know-how results from or is developed in
the course of the manufacture of UPE Membranes or Treated Other MMI
Membranes in the Premises during the term of the Lease (including the
use of Millipore Equipment in such manufacture) whether by employees
of Millipore, employees of MMI or jointly, such know-how shall be
jointly owned by MMI and Millipore. Millipore shall have rights to
use such know-how in all fields other than the MMI Core Business, and
MMI shall have rights to use such know-how in all fields other than
the Millipore Core Business.
(n) During the period of the Lease, if requested by MMI, Millipore
agrees to perform quality control testing of the UPE Membranes and
Treated Other MMI Membranes for MMI on a contract basis, in accordance
with the test specifications in effect as of the date of this
Agreement, as may be modified by agreement of the parties. Such
testing will be scheduled between the parties, and will be charged to
MMI at the rates per person-hour as set forth on Exhibit C.
(o) All amounts payable by MMI to Millipore, or by Millipore to MMI,
pursuant to this Section 2 ,except for the lease payments provided in
clause (c) above, shall be payable within forty-five (45) days
following receipt of invoice. Any late payments shall be subject to
interest at a rate of 12% per annum.
(p) MMI shall have the right to add other membranes to the list and
definition of "Treated Other MMI Membranes" during the period of the
Lease, subject to (i) Millipore's approval (on grounds of safety,
compliance with laws, or avoidance of damage to the Millipore
Equipment or the Premises) of the manufacture of such additional
Treated Other MMI Membranes, which approval shall not be unreasonably
withheld or delayed and (ii) scheduling of use of the Millipore
Equipment as shall be negotiated by the parties in good faith.
3. SUPPLY OF MEMBRANES
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Subject to the terms and provisions of a JSA that may be in effect from time to
time:
(a) MMI agrees to sell to Millipore, from time to time during the Term,
Flat Sheet UPE Membranes, in the amounts contained in Millipore's
Releases , and Millipore agrees to sell to MMI, from time to time
during the Term, Other Membranes in the amount contained in MMI's
Releases. Except as set forth in Section 6(a) hereof, neither party
shall have any minimum or maximum purchase requirements for any or all
of such Membranes hereunder, either per order or in the aggregate.
(b) Unless otherwise agreed by both parties in writing, this Agreement
applies to all Releases placed by a Supplied Party with a Supplying
Party during the Term. The terms and conditions of this Agreement
shall apply to any Release, whether
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or not this Agreement or its terms and conditions are expressly
referenced in the Release.
(c) Unless otherwise agreed by both parties in writing for a specific
transaction, no inconsistent or additional term or condition in any
Release, or in any acknowledgment, invoice or other document issued by
a Supplying Party or its representative in connection with a
particular purchase by a Supplied Party, shall be applicable to a
transaction within the scope of this Agreement. Both parties
specifically agree that any terms and conditions in any such documents
which are in any way inconsistent with this Agreement shall be
inapplicable, and the terms of this Agreement shall govern.
4. TERM AND TERMINATION
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(a) The effective period of this Agreement (the "Term") shall begin on the
Separation Date and continue thereafter for a period of five (5) years
or until earlier termination in accordance with clause (b) or (c) of
this Section 4. Any Release issued by a Supplied Party before the
effective date of termination and in accordance with Section 6(a)
hereof shall be fulfilled by the Supplying Party.
(b) Either party may terminate this Agreement prior to the date five (5)
years following the Separation Date without prejudice to any rights or
liabilities accruing up to the date of termination:
(i) in the event of a material breach by the other party of any of
the terms and conditions of this Agreement, by giving the other
party notice of such breach, and provided that such breach shall
not have been cured within sixty (60) days following such notice;
and
(ii) immediately, by written notice thereof, if any of the following
events or an event analogous thereto occurs:
a. an adjudication has been made that the other party is
bankrupt or insolvent;
b. the other party has filed bankruptcy proceedings or has had
such proceedings filed against it, except as part of a bona
fide scheme for reorganization;
c. a receiver has been appointed for all or substantially all
of the property of the other party;
d. the other party has assigned or attempted to assign this
Agreement for the benefit of its creditors; or
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e. the other party has begun any proceeding for the liquidation
or winding up of its business affairs.
(c) Termination under this Section 4 shall be in addition to and not a
substitute for other rights or causes of action of the terminating
party.
(d) Termination of this Agreement shall not in any way operate so as to
impair or destroy any of the rights or remedies of either party,
either at law or in equity, nor shall it relieve the parties of their
obligations pursuant to Sections 2(k) (l) and (m), 7, 8, 11, 12, 14,15
and 16 hereof.
5. PRICE
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(a) Prices for the Membranes shall be at the Supplying Party's fully
burdened manufacturing cost for such Membranes, consistent with U.S.
Generally Accepted Accounting Principles ("Manufacturing Cost"), plus
twenty percent (20%). During the period from the Separation Date
until the first anniversary thereof, such prices for the Membranes
will be as shown in Exhibit A hereto. On such first anniversary of
the Separation Date and on each anniversary thereafter during the
Term, such prices will be adjusted to reflect the then current
Manufacturing Cost, which shall be set by the Supplying Party after an
"open-book" review by the parties.
(b) Prices and deliveries will be FOB 00 Xxxxx Xxxx, Xxxxxxx, XX.
6. ORDERS, DELIVERY AND PAYMENT
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Subject to the terms and provisions of a JSA that may be in effect from time to
time:
(a) Each Supplied Party will provide the corresponding Supplying Party
with a rolling one year forecast of its demand for Membranes hereunder
(a "One- Year Forecast") which will be updated on a quarterly basis,
at least thirty (30) days prior to the start of each calendar quarter.
Each such One-Year Forecast shall include a sub-forecast for the first
three months within the One-Year Forecast (a "3 Month Forecast"). The
Supplied Party must provide Releases for delivery, during the three
months covered by such 3 Month Forecast, of such Membranes in
quantities not more than 0% less or 30% greater than the quantities
set forth in such 3 Month Forecast. Except for such commitment with
respect to the 3 Month Forecasts, the One-Year Forecasts will be used
for planning purposes only and are not binding. A Supplying Party will
ship Membranes so as to arrive on the delivery date set forth in a
Release, provided that the delivery date set forth in such Release is
not less than 30 days following the date such Supplying Party receives
such Release and provided that the amounts set forth
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in such Release are within the range provided above in accordance with
the applicable 3 Month Forecast.
(b) A Supplied Party shall make payment to the Supplying Party within
forty- five (45) days after the later of (i) receipt of ordered
Membranes, and (ii) receipt of such Supplying Party's invoice for such
Membranes. All payments shall be made in U.S. Dollars. Late payments
shall be subject to interest at a rate of 12% per annum.
(c) All Product shall be tested, inspected and packaged for delivery by
the Supplying Party as mutually agreed by the parties.
7. NON-COMPETITION
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(a) Millipore agrees that neither it nor any of its Affiliated Companies
will (i) sell outside of the Millipore Core Business any UPE Membranes
or UPE Products, or (ii) sell any UPE Membranes or UPE Products to any
distributor, OEM manufacturer or other third party that has rights to,
or that Millipore or any such Affiliated Company has reason to believe
will, resell such UPE Membranes or UPE Products outside of the
Millipore Core Business or sell other products which include UPE
Membranes or UPE Products as materials or components outside of the
Millipore Core Business.
(b) MMI agrees that neither it nor any of its Affiliated Companies will
(i) sell into the Millipore Core Business any Other UPE Membranes or
Other UPE Products, or (ii) sell any Other UPE Membranes or Other UPE
Products to any distributor, OEM manufacturer or other third party
that has rights to, or that MMI or any such Affiliated Company has
reason to believe will, resell such Other UPE Membranes or Other UPE
Products into the Millipore Core Business or sell other products which
include Other UPE Membranes or Other UPE Products as materials or
components into the Millipore Core Business.
(c) Millipore agrees that neither it nor any of its Affiliated Companies
will (i) sell into the MMI Core Business any Other Membranes or Other
Membrane Products, or (ii) sell any Other Membranes or Other Membrane
Products to any distributor, OEM manufacturer or other third party
that has rights to, or that Millipore or any such Affiliated Company
has reason to believe will, resell such Other Membranes or Other
Membrane Products into the MMI Core Business or sell other products
which include Other Membranes or Other Membrane Products as materials
or components into the MMI Core Business.
(d) MMI agrees that neither it nor any of its Affiliated Companies will
(i) sell outside of the MMI Core Business any Other Membranes, Other
Membrane Products, Treated MMI Membranes or
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Treated MMI Products, or (ii) sell any Other Membranes, Other Membrane
Products, Treated MMI Membranes or Treated MMI Products to any
distributor, OEM manufacturer or other third party that has rights to,
or that MMI or any such Affiliated Company has reason to believe will,
resell such Other Membranes, Other Membrane Products, Treated MMI
Membranes or Treated MMI Products outside of the MMI Core Business or
sell other products which include Other Membranes, Other Membrane
Products, Treated MMI Membranes or Treated MMI Products as materials
or components outside of the MMI Core Business.
(e) Notwithstanding any of the above provisions of this Section 7 or the
provisions of Section 2(k) and (l) hereof, neither party nor any of
its Affiliated Companies shall be restricted from selling UPE Products
or Other Membrane Products to distributors as required in accordance
with the terms of distribution agreements as in effect as of the date
of this Agreement including those listed on Exhibit E attached hereto,
provided that (i) each party will use reasonable commercial efforts to
cause any such terms of distribution agreements that are inconsistent
with the foregoing provisions to be amended so as to be consistent
with such provisions, (ii) no such distribution agreements shall be
amended following the date of this Agreement so as to be inconsistent
with such provisions, and (iii) no distribution agreements or other
agreements containing terms inconsistent with such provisions shall be
renewed or entered into by either party following the date of this
Agreement.
8. WARRANTIES AND INDEMNIFICATION
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(a) Each Supplying Party warrants to the corresponding Supplied Party
that:
(i) All Membranes supplied to the Supplied Party hereunder shall
conform to the specifications for such Membranes as in effect as
of the date of this Agreement and as provided to the Supplied
Party, as such specifications may be amended as agreed by the
parties ;
(ii) All Membranes supplied hereunder shall be free of defects in
materials and workmanship;
(iii) It will abide by all applicable laws and regulations in
manufacturing and supplying Membranes pursuant to this Agreement;
and
(iv) All Membranes supplied hereunder will be manufactured in strict
conformity with ISO 9002 and cGMP standards.
(b) In the event of a breach of the foregoing warranties, the Supplying
Party's sole obligation to the Supplied Party shall be to repair,
replace or refund, at the Supplying Party's option, any non-conforming
Membranes.
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(c) THE SUPPLYING PARTY MAKES NO OTHER WARRANTY, EXPRESSED OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR USE. FURTHERMORE, THE SUPPLYING PARTY SHALL
NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR ANY OTHER
INDIRECT DAMAGES RESULTING FROM ECONOMIC LOSS OR PROPERTY DAMAGE
SUSTAINED BY THE SUPPLIED PARTY FROM THE USE OF THE SUPPLIED
MEMBRANES.
(d) Each Supplying Party agrees to indemnify and hold the corresponding
Supplied Party harmless from and against any claim or legal action by
a third party against such Supplied Party (including reasonable
attorneys' fees associated therewith) based on damages incurred as a
result of property damages, personal injury or death, to the
proportionate extent arising from a breach of any of the above
warranties of the Supplying Party or from the Supplying Party's
negligent action or omission.
(e) Without limiting any other rights or remedies that a Supplied Party
may have, if such Supplied Party determines that delivered Membranes
do not conform to the agreed specifications for such Membranes, then
such Supplied Party may reject or withdraw its acceptance thereof and
shall notify the Supplying Party in writing of such nonconformity or
error within thirty (30) days from receipt of such Membranes by the
Supplied Party. The Supplied Party may subject any Membrane to
internal testing for purposes of determining conformity to
specifications. The Supplying Party shall have fifteen (15) days
after receipt of written notice of nonconformity or error to replace
nonconforming Membranes at the expense of the Supplying Party. If so
directed by the Supplying Party, the Supplied Party shall return
nonconforming Membranes to the Supplying Party's manufacturing
facilities, at the Supplying Party's expense and using such carrier
and such delivery dates and terms as the Supplying Party shall
reasonably specify.
(f) The parties agree to have their representatives meet at least once
every three (3) months (unless otherwise agreed) to review compliance
with the manufacturing, specifications, product quality, forecasting
and delivery terms set forth in this Agreement, and to agree on any
necessary corrective actions or modifications to the JSA as then in
effect.
9. MEMBRANE MODIFICATIONS; NEW MEMBRANES.
--------------------------------------
(a) Each Supplying Party agrees that it will not substantially change the
Membranes that it will supply hereunder or their formulation,
manufacturing or testing processes, process equipment, other aspects
of form, fit or function, or
14
production location, unless the Supplied Party approves such change in
writing, which approval may require formal validation and
qualification and possibly customer notification. The implementation
of any such accepted changes shall be subject to the parties'
agreement on any change in price or other terms of supply as may be
necessitated or requested by a party as a result of such change.
(b) If any new or improved UPE Membranes (i) result from research and
development work (A) to be conducted by Millipore pursuant to the
Research Agreement between Millipore and MMI entered into as of the
date of this Agreement, or (B) that may be conducted by either
Millipore or MMI after the Separation Date but during the Term of this
Agreement, or (ii) are requested by Millipore to be added to the
supply provisions hereof, and are: (A) specified in Millipore's
pre-Separation Date LRP, or (B) agreed to by MMI, and (C) are
technically feasible for MMI to manufacture, it is intended that such
UPE Membranes be added to this Agreement both in terms of MMI's supply
to Millipore and MMI's manufacture of such UPE Membranes, and they
shall be so added to this Agreement upon agreement by the parties as
to specifications and pricing, which pricing shall be consistent in
methodology with the pricing hereunder.
(c) Without limiting the provisions of clauses (a) and (b) of this Section
9, MMI agrees following the Separation Date at its own expense to
continue work in improving UPE Membranes in the areas planned prior to
the Separation Date and noted in Millipore's LRP, including those
areas of improvement set forth on Exhibit D hereto.
10. INVENTORY
Each Supplying Party will maintain an inventory of Membranes, in such amounts as
shall be agreed by the parties but in no event less than amounts specified in
the Supplied Party's current 3 Month Forecast.
11. ACCESS TO FACILITIES
At any time during the Term, upon reasonable advance notice by a Supplied Party,
such Supplied Party's authorized representatives and customers (subject to
appropriate confidentiality obligations) shall be provided access to the
facilities of the Supplying Party to audit or verify conformity of Membrane
manufacture to ISO 9002 and cGMP standards and other applicable laws and
regulations. During the period of the Lease, Millipore's authorized
representatives shall be provided access to the Premises for the purpose of
auditing or troubleshooting (to be coordinated with MMI) of technical problems
with UPE Membranes or their manufacture. Also, during the period of the Lease,
MMI customers (subject to appropriate confidentiality obligations and on
reasonable advance notice, and for the purposes
15
indicated above) shall be provided access to the areas of Millipore's 00 Xxxxx
Xxxx facility where the Millipore Equipment is located and used.
12. INSURANCE
---------
Each Supplying Party agrees to procure and maintain, at all times during the
Term, product liability insurance with respect to the Membranes supplied by it
(Broad Form Vendor's Endorsement) and contractual liability coverage, with the
minimum limits of $5,000,000 (Five Million Dollars). Each Supplying Party
shall, upon request by the Supplied Party, furnish to the Supplied Party a
certificate of insurance evidencing the foregoing coverage and limits. The
insurance provider shall not be changed without providing the Supplied Party
with ten (10) days' prior written notice.
13. NOTICES
-------
Any notice or other communication required or permitted to be given by either
party pursuant to the terms of this Agreement shall be in writing and shall be
deemed given if and when delivered by hand or sent by certified mail, return
receipt requested, overnight courier, confirmed telecopy, or confirmed
electronic mail transmission, addressed as follows:
If to Millipore: Millipore Corporation
00 Xxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Vice President, Manufacturing
-----------------------------
Fax: (000)000-0000
with a copy to: Millipore Corporation
00 Xxxxx Xxxx
Xxxxxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
If to MMI: Millipore MicroElectronics, Inc.
Patriots Park
Xxxxxxx, XX 00000
Attn: Vice President, Manufacturing
-----------------------------
Fax: (781) ________
with a copy to: Millipore MicroElectronics, Inc.
Patriots Park
Xxxxxxx, XX 00000
Attn: General Counsel
Fax: (781) _________
16
or to such electronic mail address as may be specified by an addressee party to
the other party by one of the other means provided above, or to such other
address, telecopy number or electronic mail address as may be specified by an
addressee party to the other by one of the means provided above.
14. FORCE MAJEURE
-------------
The obligations of a party under this Agreement will be suspended to the extent
that it is wholly or partially precluded from complying with its obligations
under this Agreement by force majeure. Force majeure includes, but is not
restricted to, fire, storm, flood, earthquake, explosion, accident, act of the
public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine
restriction, labor dispute, labor shortage, transportation embargo or failure or
delay in transportation, act of God, act (including laws, regulations,
disapprovals or failure to approve) of any government agency, whether national,
municipal, or otherwise. During the existence of any such force majeure
condition, the affected party shall nevertheless use its best efforts to remove
the cause thereof.
15. NO OTHER RIGHTS
---------------
Neither party shall have any rights hereunder to any patents or other
intellectual property of the other party, except as specifically set forth
herein. Without limiting the generality of the foregoing, neither party shall
have any rights to use any trademarks of the other party for any purpose, in
connection with the Membranes to be manufactured or supplied hereunder.
16. INCORPORATION OF PROVISIONS FROM MASTER AGREEMENT, CONFLICTS
------------------------------------------------------------
(a) The following provisions of the Master Agreement, mutatis mutandis,
are hereby incorporated by reference into this Agreement for all
purposes:
Article VI (Confidentiality);
Article IX (Dispute Resolution);
Section 10.3 (Governing Law);
Section 10.6 (Counterparts);
Section 10.7 (Binding Effect; Assignment);
Section 10.8 (Severability);
Section 10.9 (Failure or Indulgence Not Waiver;
Remedies Cumulative);
Section 10.10 (Amendment);
Section 10.11 (Authority);
Section 10.12 (Interpretation).
17
In the event of any conflict between any of the foregoing incorporated
provisions of the Master Agreement and any other provision of this
Agreement, such other provisions shall prevail.
(b) In the event of any conflict between any of the provisions of this
Agreement and any provision of the Master Patent License Agreement,
the Master Patent Grantback License Agreement or the Master Trade
Secret and Know-How Agreement, each dated as of even date herewith
between the parties hereto, the provisions of such other agreements
shall prevail.
17. ENTIRE AGREEMENT
----------------
This Agreement, including Exhibits A, B, C and D attached hereto, is the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes any prior negotiations and agreements or understandings and any
contemporaneous oral agreements or understandings with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives effective as of the date first
set forth above.
MILLIPORE CORPORATION MILLIPORE MICROELECTONICS, INC.
By:______________________ By:_______________________
Name:___________________ Name:_____________________
Title:____________________ Title:______________________
18
EXHIBIT A:
---------
EXHIBIT B
---------
EXHIBIT C
EXHIBIT D:
